The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-03-30
The Validity of the Opium Act of
1886 Called in Question.
Arguments of COunseI-The Decision
Reserved.

Opium Act of 1886, of having opium in
possession contrary to law; that he had
been sentenced to two years imprison-
ment at hard labor and a fine of 81 900,
and now prayed for his release.
Mr.. w. A Kinney, for the application,
said that the grounds upon which it was
made were that the sentence set forth in
the mittimus was in itself illegal, so far as
it related to having opium in possession.
Section covered not only the possession
of opium contrary to the provisions of
section 3, but also the selling of opium.
The charge was not selling, but having
opium in possession. The Act provided,
not for having opium unlawfully in pos
session, but it limited it to opium in pos
session contrary to the provisions of one
specific section, to wit, section 3. If that
contention were correct, and the posses
sion were not contrary to section 3, there
was no law against it unless the Court
held that it was contrary to the old law
of IA, which had not been repealed. The
question was whether such q sentence as
that passed upon BritO could be legally
passed upon person for having opium in
POooCoSAOIA OOIill w oSbClOlA = VI VIZ - ~
of '86. The only provision of this act regard
ing the possession of opium was contrary
to section 81 That section simply pro-
vided for the performance of certain cleri-
cal acts on the part of the vendor of the
opium-the keeping of record book and
the giving of receipt to the purchaser.
Counsel contended that section taken in
conjunction with section 3, was unintelli-
gible, and the question was therefore one
involving the construction of the statute.
Section 4, as regarded possession, was so
unintelligible that he thought the Court
would be unable to construe it. The in
tention of the Legislature might be appar-
ent, but the words used did not cover the
intention. 1t was not enough that the Of
Tense was within the spirit of the law;
there must be the actual words which le
gally cover the case. In constituting this
statute, which created a felony under
our Penal Code, very careful construction
was demanded, and he cOntended that the
heavier the penalty, the more strictly ac-
curate should be the construction. In
support of this, counsel quoted Bishop on
Criminal Law Many cases GOULD be
cited without difficulty to illustrate this
principle, but it was less easy matter to
find case in which the wording was so
ambiguous as to render an Act void. The
reason of this probably was that in other
countries they had a more intelligent
class of legislators. He could, however,
cite case which had arisen in England,
in which Lord Denbigh had such statute
before him. The ruling in that case was
that although the Court was bound to give
all possible meaning to the words of the
Legislature, it was incompetent to supply
a meaning which the words did not author
ize. The case cited was not criminal one,
and if this were the decision in civil case,
how much more would it hold good in d
criminal one. ut was much safer as
one of the Associate Judges had then
marked, 'to say that the words had no
meaning" Counsel claimed that the Act,
so far as it creates penalty for person
other than the licensee, is void. 1t limited
itself to one section which did not define
the offense. 1t was Hamlet, with Hamlet
left out.
Mr.. F. NJ. Hatch, who appeared for the
Marshal, conformity with Mr.. Peterson,
maintained that the validity of this Act
could not be inquired into on habeas cor
pus. The purpose of writ of habeas cor
pus was to enable the body to be brought
before the Court and to compel those hold
ing it in custody to produce some author
ity for their doing so. IF they had the
authority of some Court in the Kingdom
that was sufficient. That Court could go
no further. He thought the learned coun-
sci for the application would be unable to
produce any authority whereby the valid
ity of an Act of the Legislature could be
inquired into under habeas corpus. 1t
might as well be said that the provisions of
the Act were unconstitutional. All the
points raised by counsel for the other side
were such as should be discussed at a trial
upon the merits of the case. Some author
ity should be produced to warrant the
Court in pronouncing the law void. He
thought it was not necessary for him to
discuss what the law really did mean.
Mr. Kinney-Our contention is that the
mittimus is on it's face irregular.
Mr.. Hatch said the question was, is there
anv possible offense under any circum-
stances of which man can be found guilty
under this law? 1t was contended that
there was not But he (Mr. Hatch) con-
tended that the Court had not at that time
the power to go into the question of the
construction of the law.
His Honor-What | have to decide is
whether the punishment is legal.
Mr. Hatch said that if there was no Of
Tense the accused would have to show that
he came into possession of the opium ac-
cording to Iaw-frOm some person holding
the license to sell it, and that it was in the
record book.
His Honor-Supposing the record is not
kept-that the person selling the opium
wilfully fails to keep it?
Mr.. Hatch-Then it would be an illegal
sale.
His Would the purchaser have to
suffer for that?
Mr. Hatch think the purchaser would
have to suffer for it. He takes the opium
at his own risk. The effect of this might
perhaps be difficult to reconcile with JUS
tice, but that was not the question before
the Court. The question now before the
Court was, was there any offense provided